The concept of freedom, as defined by Cecília Meireles in her verses, is inherent to the human dream, universally understood and valued. Despite the distortions that may arise, its importance for a dignified life is undeniable.
In essence, freedom allows the pursuit of interests without the obligation to answer to third parties or authorities, a fundamental guarantee enshrined in the Brazilian Constitution.
A clear example of this right is freedom of expression , which encompasses a variety of intellectual, artistic, and communicative activities, and is vital for full existence and democracy.
However, it is important to emphasize that this freedom should not be used as an excuse to promote violence, discrimination, or defamation, as such abuses are not protected by freedom of expression and should be punished according to the law.
The Evolution of Fundamental Rights
Current progress in constitutional law is largely influenced by the consolidation of fundamental rights as the core of the protection of human dignity, recognizing the Constitution as the appropriate place to guarantee such prerogatives.
This progress is in line with the recognition of the Constitution as the supreme law of the legal system, protecting the most essential values of human existence against political and temporal changes.
The importance of fundamental rights is highlighted by the preamble of the current Constitution, which proclaims the purpose of establishing a Democratic State intended to guarantee social and individual rights, as well as the freedom and security of citizens.
As the relationship between the State and the individual is reconfigured, fundamental rights occupy a prominent position in society, reflecting the priority of individual rights over duties towards the State, with the aim of meeting the needs of citizens.
This evolution is evidenced by the various generations of fundamental rights, which encompass civil and political rights, social, economic, and cultural rights, as well as rights related to the protection of human dignity and the environment.
These fundamental rights reflect the specific demands of each historical period and demonstrate a growing recognition of the importance of human dignity over time.
Two myths about Human Rights that we need to debunk!
Legislation and Fundamental Rights: Balancing Freedom of Expression
Within the Legislative Branch, it is crucial that lawmaking activity be aligned with the system of fundamental rights, and may even adopt a proactive approach by enacting norms that regulate rights dependent on legislative implementation.
A controversial issue related to the legislator's obligation to uphold fundamental rights is the so-called prohibition of regression. Those who defend this prohibition argue that, once a certain level of realization of fundamental rights has been achieved through legislation, it is unacceptable to regress without offering adequate compensation.
While freedom of expression without censorship is guaranteed by the Constitution, it is important to recognize that there are limits to the free expression of thought.
Hate speech that incites violence or prejudice against groups, individuals, or institutions is not protected by the right to freedom of expression. In this context, the Judiciary has the essential function of protecting rights that have been violated or are threatened with violation, as established by Article 5, XXXV, of the Federal Constitution.
The courts have the power and responsibility to oversee the actions of the other branches of government, thereby defining the content of the fundamental rights enshrined in the constitution.
The binding nature of courts to fundamental rights implies that they must give these rights the maximum possible effectiveness. Furthermore, this binding nature also implies that courts have a duty to refuse to apply norms that do not respect fundamental rights, thus guaranteeing their effective protection.
Tensions between Freedom of Expression and Criminal Law: A Balance Between Democracy and Responsibility
The implications of freedom of expression can include strengthening democracy by allowing for open debate of ideas and public scrutiny; encouraging diversity of opinions and perspectives; and promoting the advancement of knowledge and innovation.
However, it is also possible that expressions of hate speech, dissemination of misinformation, and propagation of harmful content may arise.
Freedom of expression can violate the law when its manifestations exceed legal limits, such as defamation, slander, incitement to violence, hate speech, or disclosure of confidential information, which may threaten fundamental rights or public order.
As highlighted by Justice Moraes of the Supreme Federal Court, and understood by the Brazilian population, freedom of expression is not equivalent to freedom of aggression . It is essential to recognize that freedom of expression does not justify the propagation of hatred, racism, or homophobia, and does not serve as a pretext to defend tyranny.
Competition of Fundamental Rights and the Balance between Freedom and Constitutional Restriction
The article “ Constitution and Internet: What needs to be discussed today, ” featured on the IDP Blog, highlights the role the Internet plays in social interactions and the dissemination of culture. With social networks, content-sharing platforms, and instant communication tools, people are redefining how they connect and share experiences.
In the Brazilian context, this transformation translates into an increasingly connected society, impacting everything from how news is consumed to cultural expression. It is important to note that the United Nations (UN) has recognized internet access as a human right, and disconnecting the population from the network would be a violation of this fundamental right based on Article 19 of the Universal Declaration of Human Rights.
Fundamental rights, as precepts of constitutional hierarchy, can only be limited by express provision of the Constitution or by ordinary law in accordance with constitutional principles. Legal restrictions refer to limitations imposed by the legislator backed by explicit constitutional authorization.
Various constitutional systems offer specific ways of restricting fundamental rights, taking into account historical and cultural variables. The presence of references to such restrictions in the Declaration of the Rights of Man and of the Citizen of 1789 demonstrates the conception that fundamental rights can be limited since the beginnings of modern constitutionalism.
The conflict of rights arises when conduct can be subsumed under the protection of several fundamental rights. In this context, the question arises of which fundamental norm to apply and to what type of restriction the citizen is subject.
In cases of conflicting fundamental rights, such as the broad right to liberty, protection should be granted by the specific fundamental right. Thus, restrictions on freedom of assembly or the inviolability of the home apply based on specific constitutional provisions, not on the general principle of liberty.
In these scenarios of genuine competition between fundamental rights, the legislator is bound by the provisions of the more robust fundamental norm, subject to less incisive restrictions.
Read also: CONSTITUTION AND INTERNET: WHAT NEEDS TO BE DISCUSSED TODAY? – IDP Law Blog
Clash between Elon Musk and Alexandre de Moraes: Challenges and the Need for Regulation of Social Networks
In recent days, Elon Musk, billionaire and owner of the social network X, has caused controversy by threatening to disregard Brazilian court decisions and reactivate blocked profiles.
Furthermore, Musk launched a series of attacks against a Supreme Court Justice. Alexandre de Moraes, accusing him of censorship and threatening to arrest employees of the social network in Brazil.
In response to Musk's actions, Moraes ordered an investigation into the billionaire and included him in the inquiry into digital militias for obstruction of justice, incitement to crime, and abuse of economic power. The minister established a fine of R$ 100 for each reactivated profile if the former Twitter account, now X, fails to comply with court orders.
Musk's actions provoked various reactions from politicians and authorities. The president of the Senate, Rodrigo Pacheco, emphasized the importance of regulating social media in Brazil, stressing that it is not about censorship, but rather about establishing rules for the use of these digital platforms.
Meanwhile, the president of the Supreme Federal Court reinforced that all companies operating in Brazil are subject to national laws and that judicial decisions must be respected, being subject to appeal, but never to deliberate non-compliance.
These episodes highlight the need for clearer regulation of social media in the country. Bill 2630/2020, known as the Fake News Bill , currently under analysis in the Chamber of Deputies, seeks to establish rules for internet use, aiming to curb abuses and manipulations.
The discussion about the regulation of social media will be a relevant topic in Congress in 2024, considering the challenges posed by the digital environment and the protection of individual rights.
Read also: The Role of Social Media in Spreading Fake News and the Right to Freedom of Expression
Conclusion
Given the clash between Elon Musk and Alexandre From Moraes' work, a profound reflection emerges on freedom of expression and its limits in the current context.
Freedom of expression is a fundamental right that must be protected and valued in a democratic society, as it is essential for public debate, diversity of opinions, and the advancement of knowledge.
However, it is important to recognize that this right is not absolute and cannot be used as justification for criminal practices such as defamation, hate speech, or incitement to violence. The case in question highlights the complexity of balancing freedom of expression with other fundamental rights, such as the right to privacy , security, and human dignity.
The role of the State, represented by the Judiciary and the Legislature, is fundamental in guaranteeing this balance, establishing clear rules and punishing those who abuse freedom of expression to harm others or promote misinformation.
The regulation of social media, as proposed by the Fake News Bill, is an important measure in this regard, as it seeks to protect users against abuse and manipulation without infringing on the right to freedom of expression. However, it is essential that this regulation be carefully crafted to guarantee the protection of individual rights and avoid arbitrary censorship.
Ultimately, the Musk v. Moraes case highlights the need for a broad and democratic debate on the limits of freedom of expression in the digital age, seeking to find a balance that promotes peaceful coexistence and mutual respect among citizens. This discussion is fundamental for law students and professionals, especially those interested in areas such as Constitutional Law and Digital Law, as these topics will be covered in the DP Online Postgraduate Program.
References:
- https://www.jusbrasil.com.br/artigos/quais-sao-as-geracoes-de-direitos/195518426#:~:text=Imaginou%2C%20portanto%2C%20que%20seria%20poss%C3%ADvel,de%20fraternidade%20(3%C2%AA%20gera%C3%A7%C3%A3o).
- https://www.tjdft.jus.br/consultas/jurisprudencia/jurisprudencia-em-temas/direito-constitucional/liberdade-de-expressao-desacato-tipicidade-ofensa-a-direito-alheio-convencao-americana-de-direitos-humanos
- SILVA, Louise SH Thomaz da; SOUTO, Fernanda R.; OLIVEIRA, Karoline F.; et al. Digital Law. [Enter Publisher Location]: Grupo A, 2021. E-book. ISBN 9786556902814. Available at: https://integrada.minhabiblioteca.com.br/#/books/9786556902814/. Accessed on: April 11, 2024.
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- https://www.conjur.com.br/2022-mar-11/opiniao-direito-realidade-preciso-conter-milicias-digitais/
- https://olhardigital.com.br/2024/04/08/internet-e-redes-sociais/o-imbroglio-entre-elon-musk-e-alexandre-de-moraes/
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- https://www.correiobraziliense.com.br/politica/2024/04/6833977-pacheco-diz-que-regulamentacao-das-redes-sociais-e-de-ia-e-inevitavel.html
- https://www.correiobraziliense.com.br/politica/2024/01/6783601-regulacao-das-redes-sociais-sera-tema-obrigatorio-no-congresso-em-2024.html ,
- CONSTITUTION AND THE INTERNET: WHAT NEEDS TO BE DISCUSSED TODAY? – IDP Law Blog
